Applicant S355 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 27 (23 January 2004)

Last Updated: 30 January 2004

FEDERAL COURT OF AUSTRALIA

Applicant S355 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 27

APPLICANT S355 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1409 OF 2003





EMMETT J
23 JANUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1409 OF 2003

BETWEEN:	APLICANT S355 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT ROSLYN SMIDT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	23 JANUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the hearing on 5 February 2004 be vacated;

2. the first respondent give access to the applicant’s solicitors to the relevant documents no later than 29 January 2004;
3. the applicant file and serve, no later than 4 February 2004, any further affidavits on which he intends to rely, together with a statement of any documentary evidence on which he intends to rely;

4. the proceeding be listed for directions on 5 February 2004 before Emmett J.





Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1409 OF 2003

BETWEEN:	APPLICANT S355 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT ROSLYN SMIDT, MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	EMMETT J
DATE:	23 JANUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a national of Bangladesh. He applied for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 11 March 1999, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), made a decision refusing to grant a protection visa. Application was then made to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 19 June 2000, for reasons published on 4 July 2000, the Tribunal affirmed the decision not to grant a protection visa.

2 The applicant subsequently became a party to a proceeding in the High Court of Australia commenced by Ms Lie, purporting to act as representative of a number of plaintiffs including the applicant. On 20 June 2003, pursuant to directions given by the High Court, the applicant filed a draft order nisi in the High Court seeking prerogative writ relief in respect of the decision of the Tribunal. The High Court subsequently remitted that proceeding to this Court and, on 27 October 2003, the matter came before me for directions.

3 On 27 October 2003 I made orders that the applicant file and serve, on or before 24 November 2003, a statement of contentions of relevant facts and law and any affidavits on which the applicant intended to rely at the hearing. That order was not complied with. However, on that day, the applicant filed a document entitled ‘Request for Extension of Time’, which asserted that a legal adviser, who had been assigned to the applicant under a legal aid scheme, had ‘only just received my Green Book’. That was a misapprehension since no such ‘Green Book’ has been prepared in respect of the proceeding.

4 When the matter came before me for directions on 4 December 2003, I ordered that the proceeding be dismissed pursuant to O 10 r 7 of the Federal Court Rules for want of compliance with the orders of 27 October 2003. Before making that order, however, I considered the reasons of the Tribunal for affirming the decision of the Minister to refuse a protection visa to the applicant. The applicant’s claim to a protection visa was based on his assertion that he is a homosexual from Bangladesh. My conclusion on 4 December 2003, was that the findings of the Tribunal were findings of fact and that there was no obvious flaw in the process of reasoning that led to the Tribunal’s conclusions. Since the applicant had adduced no material upon which the Court could conclude that there was any basis for the grant of relief in respect of the Tribunal’s decision, I made the order for dismissal.

5 However, on 9 December 2003, the High Court of Australia published reasons for its decision in matter S395 of 2002 and matter S396 of 2002: see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71. Those reasons concerned certain principles to be applied by the Tribunal in dealing with claims by homosexuals from Bangladesh. Accordingly, at my own instigation, I relisted the matter on 19 December 2003 to consider whether I should revoke the orders made on 4 December 2003 and receive further submissions in the light of the decision of the High Court. On 19 December 2003, I vacated the orders made on 4 December 2003 and directed that the matter be listed for hearing on 5 February 2004. In the course of that hearing, I raised the question of whether any additional directions should be made for the filing of further evidence. The parties indicated that no further material was to be filed and that the issues arising out of the decision of the High Court could be dealt with on the basis of the reasons of the Refugee Review Tribunal.

6 Notwithstanding the indication that no further evidence was required, the solicitors now acting for the applicant have requested the Minister to file a ‘Green Book’. They contend that that course should be adopted in the light of the terms of the Notice to Practitioners (NSW) Migration Matters (2002/4). That notice requires that, in certain proceedings under the Migration Act, the Minister should prepare for the Court a bound or stapled bundle of documents consisting of copies of the documents in the possession or power of the Minister that, from the application and any particulars provided, appeared to be relevant to the proceeding before the Court. That practice was instigated because of the large numbers of unrepresented litigants in such proceedings

7 On 16 January 2004, I gave directions as follows:

‘1. the applicant post on eCourt, no later than 4.00 pm on Tuesday, 22 January 2004:

(a) a statement of contentions of relevant facts and law, in compliance with the orders made on 27 October 2003;
(b) any proposed amended application;
(c) a statement setting out a list of the documents in respect of which access is sought, together with reasons as to why access to any other document is required;

2. the first respondent post on eCourt, no later than 4.00 pm on Thursday, 22 January 2004, a statement setting out:

(a) whether the first respondent consents to or opposes the filing of any proposed amended application, and the reasons why;
(b) whether the first respondent opposes access to the documents sought by the applicant, and the reasons why.’

8 In response to those directions, the applicant’s solicitors submitted a statement of facts and contentions together with a proposed amended application. The proposed amended application raises eight grounds upon which it will be contended that the Tribunal made a jurisdictional error in the course of its decision. The grounds are as follows:

‘(a) The Tribunal failed to exercise its jurisdiction in that it asked itself the wrong question in assessing whether the applicant’s fear of persecution was well founded.
...
(b) The Tribunal failed to exercise its jurisdiction, or alternatively failed to consider a relevant consideration, in that it failed to consider whether the Applicant’s discretion about his sexuality may have been because he feared prosecution on the basis of his sexuality.
...
(c) The Tribunal failed to exercise its jurisdiction, or alternatively failed to take into account a relevant consideration, in that it failed to consider whether even if the Applicant was discreet about his sexuality, there was a real risk that his sexuality would be revealed by someone else and that this would result in his persecution.
...
(d) The Tribunal failed to exercise its jurisdiction, or alternatively made an error of law, in implicitly dividing the social group of homosexual men in Bangladesh into discreet and non-discreet homosexual men.
...
(e) The Tribunal made a finding for which there was no evidence before the Tribunal on which it could have been made.
...
(f) The Tribunal made a finding which was so unreasonable that no tribunal acting reasonably could have made it.
...
(g) The Tribunal made a finding which was made in breach of the natural justice hearing rule, in that the applicant was not informed that the RRT proposed to make the finding and was not given an opportunity to provide material to the RRT in response to it.
...
(h) The Tribunal made a finding which was made in breach of Section 424A of the Migration Act 1958 in that the Tribunal failed to give to the Applicant particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review.’

Those grounds would appear to be within the grounds specified in the draft order nisi filed in the High Court. However, the Minister opposes leave to raise grounds (e), (f), (g) and (h) because those grounds do not rely upon the reasons of the High Court in Appellant S395/2002.

9 The Minister accepts that, if leave is granted to raise all of the grounds, the applicant would be entitled to access to the documents that his solicitors contend should be included in a ‘Green Book’. She says, however, that if the grounds are limited to grounds (a), (b), (c) and (d), those documents would not be relevant.

10 I made the orders of 4 December 2003 dismissing the application because of the failure of the applicant to comply with directions. I exercised my discretion in that regard because I had concluded that there appeared to be no substance in the application. I revisited that conclusion following the decision of the High Court in Appellant S395/2002. However, I do not consider that it is appropriate to limit the applicant to grounds that are dependent upon that decision. Had the applicant complied with the directions given on 27 October 2003, I would have permitted the applicant to raise all of the grounds now sought to be raised by the proposed amended application. Accordingly, I propose to give the applicant leave to file the proposed amended application raising all grounds.

11 It follows that the Minister should give to the applicant’s solicitors access to documents in her possession or control that are relevant to the proceeding, having regard to the grounds and particulars of the grounds set out in the proposed amended application. Those documents should be made available for inspection as on discovery. However, I do not propose to order the Minister to prepare a ‘Green Book’.

12 It is now apparent that the issues sought to be raised by the applicant are more extensive than I contemplated on 19 December 2003 when I fixed the matter for hearing on 5 February 2004. Accordingly, I propose to vacate that hearing date.

13 I will direct the Minister to give access to the relevant documents no later than 29 January 2004 and will direct the applicant to file and serve, no later than 4 February 2004, any further affidavits on which he intends to rely, together with a statement of any documentary evidence on which he intends to rely. I will list the matter for directions on 5 February 2004.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:


Dated: 23 January 2004

Solicitor for the Applicant:	Gilbert + Tobin
Solicitor for the Respondents:	Australian Government Solicitor
Date of Final Submissions:	22 January 2004
Date of Judgment:	23 January 2004